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There was no error in the refusal of the court to nonsuit the plaintiff. Proof was given without objection that, in a conversation between the plaintiff and defendant, in the presence and hearing of other persons, relating to the evidencegenerally that had been given by the plaintiff in a suit between the parties in which he had sworn as a witness, and which was sufficiently referred to and designated as that before the justice of the peace named in the complaint, the principal or material words charged or set forth in the complaint were spoken of the plaintiff and of such evidence in that particular suit, and there can be no doubt that they were spoken under such circumstances that the persons who heard them must have understood them as imputing to him the crime of perjury, and that the defendant intended to charge him with that criminal offence.
Under such circumstances neither ground of the motion for nonsuit was well founded. The first was too general, merely stating "that the plaintiff had not made out a cause of action," without any specification or suggestion whatever to designate what material facts had not been established; and the second was specific, being limited to the single and only point "that the words proved were not actionable per se, without proof of the trial of an action in which the plaintiff had been sworn and testified as a witness." It assumed that there was no evidence of that fact. That assumption was unwarranted. It clearly appears from what has been already stated that there was some testimony tending to prove that fact; and conceding that it might have been objectionable, technically, for that purpose, on the ground that the record should have been produced, no objection as to itscharacter or quality, or in any form as to its admissibility was made
It must therefore be deemed competent, or at least such objection is not available on the present appeal as a ground for the reversal of the order appealed from. Indeed, the counsel for the appellant, in his points, does not rely on the grounds upon which the nonsuit was asked on the trial. He now claims that "the words, proved to have been spoken by the defendant, were not actionable per se;" adding, "to render them so, required proof of a trial before a court having jurisdiction, in which the plaintiff had given material evidence," and that "none of those facts appeared." It is sufficient to say that no such claim was urged when his motion was made. It will appear that it differs from the second ground to which I have referred in stating, in addition to what is there stated, that the trial must have been "before a court having jurisdiction," and also that "the plaintiff had given material evidence therein." The facts as to which the proof is alleged to be defective, or rather as to which it is claimed there is no evidence, relate to matters which are in their nature, and are assumed in the objection to be,susceptible of proof; and, if such objection had then been made, it is possible, if not probable, that the requisite testimony to obviate it could have been given.
The authorities cited by the counsel, assuming them to maintain the proposition or statement in his point, are inapplicable to the question raised by the motion for a nonsuit. It follows, from the views above expressed, that there was no error by the court in the denial of the motion that entitled the defendant to a new trial.
Assuming, then, that the plaintiff had shown a cause of action, the material question now to be considered is, whether the court erred in excluding proof by the defendant of "the facts set out in his answer," either in justification of the words proven, or in mitigation of damages. It was objected to as a justification, on the ground "that the facts alleged were not sufficient to allow evidence in justification." The objection was sustained. That was, I think, erroneous. Conceding, for the purpose of considering the question in the
most favorable aspect for the plaintiff, that the answer did not aver, or state affirmatively in express terms, that he knew the testimony given by him, which was the subject-matter of the charge, was false, or that what was so testified to by him was willfully and corruptly false, and that the knowledge of such falsity was necessary to constitute the crime of perjury, that concession did not justify the exclusion of the proof offered, for the following reasons: 1st. The answer alleges that the testimony was given in an action in which the plaintiff and defendant were themselves parties, and in relation to an agreement which the plaintiff falsely testified that he entered into with the defendant, by which he, the plaintiff, agreed to work for him at five dollars per day, and that the defendant agreed to pay the plaintiff that price or compensation for such work. It then avers that no such agreement was in fact made; that the truth of the said matters was material and pertinent to the issue to be tried, and that what he, the defendant, said concerning the plaintiff had exclusive reference to such testimony. From this statement it appears that the facts which the defendant offered to prove related to a personaltransaction between those parties, and which was necessarily within the knowledge of the plaintiff, and if false, as alleged in the answer, he must have known that it was so, and consequently the false oath will be assumed to have been willfully and deliberately made, and with a full consciousness of the nature of the statement. The corrupt intention in falsely making it is prima facie established by proof of its falsity, and it would have been incumbent on the plaintiff, if the defendant had proved, as he offered to do, "all the facts set out in his answer," to have overcome the presumption of such intention by showing that he had testified falsely through surprise, or inadvertency, or by mistake, or by some fact repelling it. (See Barb. Crim. Treatise, 189; 2 Chitty's Crim. Law, 312 c.)
The only ground on which it is claimed by the plaintiff's counsel in his points that the evidence offered was properly excluded as "not allowable in justification" is "because the
answer does not state that the plaintiff swore corruptly and willfully false. If intended as a justification of the words spoken, the answer must state facts which, if true, would make the plaintiff guilty of felonious false swearing;" that "the answer comes far short of that, by omitting to state that the plaintiff testified willfully and corruptly false, and that "a justification must always be as broad as the charge."
No other reason was assigned by the learned justice who gave the opinion in support of the ruling at the circuit. All that is said by him in relation to it is, that "the matter thus pleaded and offered to be proved was clearly insufficient as a justification, because it did not contain an averment that the plaintiff knew the testimony given by him to be false, or that he testified" (as the case states it) "correctly," but probably meant, "corruptly."
What I have above stated, in relation to the allegations in the answer, shows that it contains all the statements that are claimed by the counsel and the judge to be necessary. It follows, therefore, that the evidence was improperly excluded.
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There was no error in the refusal of the court to nonsuit the plaintiff. Proof was given without objection that, in a conversation between the plaintiff and defendant, in the presence and hearing of other persons, relating to the evidencegenerally that had been given by the plaintiff in a suit between the parties in which he had sworn as a witness, and which was sufficiently referred to and designated as that before the justice of the peace named in the complaint, the principal or material words charged or set forth in the complaint were spoken of the plaintiff and of such evidence in that particular suit, and there can be no doubt that they were spoken under such circumstances that the persons who heard them must have understood them as imputing to him the crime of perjury, and that the defendant intended to charge him with that criminal offence.
Under such circumstances neither ground of the motion for nonsuit was well founded. The first was too general, merely stating "that the plaintiff had not made out a cause of action," without any specification or suggestion whatever to designate what material facts had not been established; and the second was specific, being limited to the single and only point "that the words proved were not actionable per se, without proof of the trial of an action in which the plaintiff had been sworn and testified as a witness." It assumed that there was no evidence of that fact. That assumption was unwarranted. It clearly appears from what has been already stated that there was some testimony tending to prove that fact; and conceding that it might have been objectionable, technically, for that purpose, on the ground that the record should have been produced, no objection as to itscharacter or quality, or in any form as to its admissibility was made
It must therefore be deemed competent, or at least such objection is not available on the present appeal as a ground for the reversal of the order appealed from. Indeed, the counsel for the appellant, in his points, does not rely on the grounds upon which the nonsuit was asked on the trial. He now claims that "the words, proved to have been spoken by the defendant, were not actionable per se;" adding, "to render them so, required proof of a trial before a court having jurisdiction, in which the plaintiff had given material evidence," and that "none of those facts appeared." It is sufficient to say that no such claim was urged when his motion was made. It will appear that it differs from the second ground to which I have referred in stating, in addition to what is there stated, that the trial must have been "before a court having jurisdiction," and also that "the plaintiff had given material evidence therein." The facts as to which the proof is alleged to be defective, or rather as to which it is claimed there is no evidence, relate to matters which are in their nature, and are assumed in the objection to be,susceptible of proof; and, if such objection had then been made, it is possible, if not probable, that the requisite testimony to obviate it could have been given.
The authorities cited by the counsel, assuming them to maintain the proposition or statement in his point, are inapplicable to the question raised by the motion for a nonsuit. It follows, from the views above expressed, that there was no error by the court in the denial of the motion that entitled the defendant to a new trial.
Assuming, then, that the plaintiff had shown a cause of action, the material question now to be considered is, whether the court erred in excluding proof by the defendant of "the facts set out in his answer," either in justification of the words proven, or in mitigation of damages. It was objected to as a justification, on the ground "that the facts alleged were not sufficient to allow evidence in justification." The objection was sustained. That was, I think, erroneous. Conceding, for the purpose of considering the question in the
most favorable aspect for the plaintiff, that the answer did not aver, or state affirmatively in express terms, that he knew the testimony given by him, which was the subject-matter of the charge, was false, or that what was so testified to by him was willfully and corruptly false, and that the knowledge of such falsity was necessary to constitute the crime of perjury, that concession did not justify the exclusion of the proof offered, for the following reasons: 1st. The answer alleges that the testimony was given in an action in which the plaintiff and defendant were themselves parties, and in relation to an agreement which the plaintiff falsely testified that he entered into with the defendant, by which he, the plaintiff, agreed to work for him at five dollars per day, and that the defendant agreed to pay the plaintiff that price or compensation for such work. It then avers that no such agreement was in fact made; that the truth of the said matters was material and pertinent to the issue to be tried, and that what he, the defendant, said concerning the plaintiff had exclusive reference to such testimony. From this statement it appears that the facts which the defendant offered to prove related to a personaltransaction between those parties, and which was necessarily within the knowledge of the plaintiff, and if false, as alleged in the answer, he must have known that it was so, and consequently the false oath will be assumed to have been willfully and deliberately made, and with a full consciousness of the nature of the statement. The corrupt intention in falsely making it is prima facie established by proof of its falsity, and it would have been incumbent on the plaintiff, if the defendant had proved, as he offered to do, "all the facts set out in his answer," to have overcome the presumption of such intention by showing that he had testified falsely through surprise, or inadvertency, or by mistake, or by some fact repelling it. (See Barb. Crim. Treatise, 189; 2 Chitty's Crim. Law, 312 c.)
The only ground on which it is claimed by the plaintiff's counsel in his points that the evidence offered was properly excluded as "not allowable in justification" is "because the
answer does not state that the plaintiff swore corruptly and willfully false. If intended as a justification of the words spoken, the answer must state facts which, if true, would make the plaintiff guilty of felonious false swearing;" that "the answer comes far short of that, by omitting to state that the plaintiff testified willfully and corruptly false, and that "a justification must always be as broad as the charge."
No other reason was assigned by the learned justice who gave the opinion in support of the ruling at the circuit. All that is said by him in relation to it is, that "the matter thus pleaded and offered to be proved was clearly insufficient as a justification, because it did not contain an averment that the plaintiff knew the testimony given by him to be false, or that he testified" (as the case states it) "correctly," but probably meant, "corruptly."
What I have above stated, in relation to the allegations in the answer, shows that it contains all the statements that are claimed by the counsel and the judge to be necessary. It follows, therefore, that the evidence was improperly excluded.
2. The ground on which the objection to the proof offered was based did not relate to its sufficiency as a justification on account of the omission to state any particular fact, but only that the facts alleged were not sufficient to allow evidence in justification. If it be held that the knowledge of the falsity of what the plaintiff testified to was not averred with such certainty and particularity as was requisite in the answer to show that he was guilty of perjury, and for that reason the testimony was not admissible, then it was incumbent on his counsel to have specified that omission or insufficiency, so that the defendant could have applied for an amendment of the pleading, and it is reasonable to assume that it would have been allowed. The defect, if it justified the exclusion of the proof, was one that could have been taken advantage of by demurrer; and if well taken, permission would, under the well-settled practice of the court, have been given to amend. It was, at most, an omission of one material allegation required, with those actually made, to constitute
the defence set up. It did not change substantially the defence. It was, therefore, a proper case for such amendment under section 173 of the Code. The objection, in this view of it, was not such as to warrant a refusal to admit the proof and thus deprive the defendant from the benefit of a full defence. The ruling of the court was, therefore, for the reason last presented, also erroneous.
If, however, it be conceded that the facts offered to be proved were inadmissible as a justification of the charge in the complaint, on the ground of the omission of an averment in the answer that the plaintiff knew that the testimony given by him was false, or that he swore corruptly and willfully false (and such is the opinion of my brethren), then they should have been admitted in mitigation of damages. The objection made to the offer of the proof for that purpose was not, because the answer was defective or insufficient in its allegations, and that for that reason the evidence could not be given; but the proof was objected to and excluded on the ground "that the facts alleged were not competent in mitigation of damages." This ground was not sufficient, and did not justify the exclusion. It is provided by section 165 of the Code that "the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances." The effect of that provision was considered in Bush v. Prosser
(11 N.Y., 347); Bisbey v. Shaw (12 id., 67); and in Wachter v.Quenzer (29 id., 547). Judge DENIO, in the last case, said, "the present doctrine is this: The defendant may set up a justification, or he may allege facts short of a full justification, but giving color to the charge by way of modification, or he may do both; and in either case he may prove the facts as they are, though they may fall short of a justification, and the jury may take them into consideration for the purpose of mitigating the damages."
In the case at bar, the facts alleged in the answer, assuming that they do not amount to a justification, show, as already
stated, that the testimony of the plaintiff was given in an action in which he and the defendant in the present suit were the parties, and that it related to a transaction between themselves, and of which they each had personal knowledge. The defendant understood it to be different from what the plaintiff stated it to be; and the circumstances, under which the defamatory words set forth in the complaint were spoken, were such as may have induced a belief by the defendant at the time, that the charge was true, and to show that he had good and sufficient reason for such belief. The evidence, therefore, tended to repel and overcome the legal presumption of malice that resulted and was implied from the charge itself; and the jury might well have found, from the facts alleged in the answer of the defendant, that the words complained of were spoken without actual malice, and under such circumstances as to entitle the plaintiff to nominal damages only, or at least to a smaller amount than he did in fact recover.
They were, therefore, under the rule or principle established in Bush v. Prosser and Bisbey v. Shaw (supra), admissible in mitigation of damages, and the judge erred in excluding them when offered for that purpose. In this view of the case my brethren concur. It follows that the order of the General Term refusing a new trial was, on that ground, erroneous. It must, therefore, be reversed, and the verdict must be set aside. But as a new trial cannot be had, by reason of the plaintiff's death, none will be ordered.